A right to information (RTI) applicant, who sought information on whether the central bureau of investigation (CBI) had filed a first information report (FIR) as requested by the Bank of Baroda against one of its borrowal accounts which was termed as fraudulent, was denied information under the guise of CBI being exempted from the RTI Act.
However, the central information commissioner (CIC), Saroj Punhani, observed that, although CBI is exempted from the sunshine law, it is not a blanket ban. If it is a case of corruption matters which the RTI applicant wants to seek, as was in this case, then Section 24 of the RTI Act as well as a Supreme Court directive clearly states that the information does not come under the exemption clause.
Curiously, in this case, CBI had yet to file the FIR but the CIC gave a decision that the central public information officers (CPIO) and the first appellate authority (FAA) should brush up on their knowledge about Section 24 and not give a general reply that CBI is exempted from the RTI Act.
The story goes as follows: RTI applicant Radha Raman Tiwari filed an RTI application seeking information on the borrowal account of Krishna Containers which was classified as fraud. In this case, Brajesh Kumar Singh, regional head of Bank of Baroda, Kanpur, had submitted an application to CBI, Banking Security & Fraud (BS & F) Zone, New Delhi to register a first information report (FIR) under Section 154 of CrPC against the company’s directors.
Mr Tiwari sought information from CBI as follows:
• Please furnish the authenticated copy of application given by Bank, showing date of its delivery to CBI Banking Security & Fraud (BS & F) Zone, New Delhi to register FIR in the fraud case of Krishna Containers.
• Please furnish the authenticated copy of correspondences exchanged (after receipt of Bank's application to register FIR) with Bank of Baroda related to register the FIR.
• Please furnish the authenticated copy of laid-down/extant guidelines, to be followed by CBI to register FIR in Fraud cases, reported by banks.
• Please furnish the authenticated copy of cogent reasons/ noting/ orders resulting in delay in registering the FIR in the fraud case of Krishna Containers.
• Please furnish the authenticated copy of laid-down /extant guidelines, to be followed by CBI on receipt of the complaint from the public.
The CPIO replied stating that the Central government has exempted CBI from the RTI Act, 2005. FAA upheld the CPIO’s reply.
FAA also stated that it would impede investigations – “the information sought in the instant case is regarding complaint submitted by Bank of Baroda to Central Bureau of Investigation (CBI) and disclosure of information would impede the process of investigation or apprehension or prosecution of offenders. Disclosure of such information is exempted u/s 8(1)(g) & (h) of RTI Act, 2005. Moreover, Government of India has exempted CBI from RTI Act, 2005 u/s 24 of RTI Act.”
During the second appeal hearing, the RTI applicant Mr Tiwari as well as Vivek Priyadarshi, DIG & CPIO, were present through the intra-video conference.
At the hearing, Mr Tiwari argued that the information cannot be exempt because, “the information pertaining to the allegations of corruption and human rights violations shall not be excluded and this is an integral part of Section 24 RTI Act.”
Quoting a Supreme Court directive, Mr Tiwari further argued, “CBI registers case under Section 154 of Cr PC and pursuant to Supreme Court directive, copy of FIR is uploaded on CBI's website. The directive states that “If the information sought, furnished by the exempt intelligence and security organizations, pertains to allegations of corruption and human rights violation, it would be exempt from the exclusion clause,” irrespective of the fact that the information pertains to the exempt intelligence and security organisations or not or pertains to an officer of the intelligence bureau or not.”
The CPIO defended his decision stating that the complaint filed by Bank of Baroda with CBI would impede the process of investigation or apprehension or prosecution of offenders and that the disclosure of such information is exempted U/s. 8(1) & (g) & (h) of RTI Act.
Ms Punhani observed that FAA has caused avoidable anomaly in the matter by conjointly invoking the exemptions of Section 8 and Section 24 of the RTI Act, which is an absurdity.
CIC though felt that, since no FIR was filed on the complaint as yet, the CPIO had rightly replied that “the averred complaint was under process hence disclosure of the information would have impeded the 'apprehension' of the accused/suspect getting alert.” The CIC also agreed that since the information sought by the applicant was “a substantial record for taking forward the averred complaint of Bank of Baroda, therefore, the Commission finds the applicability of 7 Section 8(1)(g) and 8(1)(h) of the RTI Act, rather tenable.”
The final decision by the CIC was that “the CPIO & FAA are advised to acquaint themselves well with the import of Section 24 of the RTI Act for future.”
What is Section 24 of the RTI Act:
The RTI Act not to apply to certain organizations.—
(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub‑section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in Section 7, such information shall be provided within forty‑five days from the date of the receipt of request.
(2) The Central Government may, by notification in the Official Gazette, amend the Schedule by including therein any other intelligence or security organisation established by that Government or omitting therefrom any organisation already specified therein and on the publication of such notification, such organisation shall be deemed to be included in or, as the case may be, omitted from the Schedule.
(3) Every notification issued under sub‑section (2) shall be laid before each House of Parliament.
(4) Nothing contained in this Act shall apply to such intelligence and security organisations, being organisations established by the State Government, as that Government may, from time to time, by notification in the Official Gazette, specify: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub‑section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the State Information Commission and, notwithstanding anything contained in Section 7, such information shall be provided within forty‑five days from the date of the receipt of request.
(5) Every notification issued under sub‑section (4) shall be laid before the State Legislature.
(Vinita Deshmukh is consulting editor of Moneylife. She is also the convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting, which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)